Strengthening immigration enforcement was one of the biggest elements of President Trump’s campaign last year, and arguably the one that resonated most deeply with many voters. Since coming to office, he has made it amply clear that he intends to carry through in fulfilling that promise.
Although the primary enforcement emphasis by the Immigration and Customs Enforcement (ICE) agency has been rounding up illegal immigrants who also are criminals, they are not letting workplaces off the hook. News reports since early this year show raids have been taking place at many different kinds of worksites throughout the country.
Employers who use the E-Verify program can find themselves much better prepared when ICE agents come knocking. E-Verify is mandatory for all federal contractors, employers in certain states, some state contractors and some employers who hire foreign graduates of U.S. universities.
E-Verify has been voluntary for most employers since it was put into place in 1996. The Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management (SHRM), estimates that well under 10% of employers are currently enrolled in the system.
President Trump’s 2018 budget calls for spending $15 million to begin implementation of a mandatory E-Verify program. However, only Congress can make E-Verify mandatory, and it hasn’t chosen to do so yet.
Some observers are convinced that E-Verify will become mandatory for all employers sometime in the near future, and the new requirement could be rolled out over a three- or five-year period. SHRM and CFGI support congressional action to preempt the current patchwork of state laws with one accurate and easily accessible federal employment verification system. SHRM also favors switching to an entirely electronic verification system to eliminate the use of paper I-9 forms.
At present, E-Verify is required for all or most employers (with some exceptions for small businesses) in the states of Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Utah. It also is required for most public employers in Colorado, Florida, Idaho, Indiana, Michigan, Missouri, Nebraska, Oklahoma, Texas, Virginia and West Virginia.
As usual, California is on a planet all its own. On May 31, the State Assembly passed a bill that would prohibit California employers from allowing immigration agents to enter a workplace or view their employees’ files without a subpoena or a warrant. The bill also would require employers to notify the California Labor Commission and an employee representative of any worksite raid or audit by ICE. The bill currently is under consideration in the state Senate. [Editor's note: The original article has been amended in the preceding paragraph.]
How to Protect Yourself
Keith Anderson, an attorney with the law firm of Bradley Arant Boult Cummings, stresses that recent workplace raids conducted by ICE in different parts of the country show the agency is not just targeting criminals. “These raids suggest a broader approach under the Trump administration with ICE making so-called ‘collateral arrests’—checking employee papers during raids and detaining anyone who is undocumented.”
In the past, ICE has given notice of a prospective audit, but Anderson says recent enforcement efforts were unannounced and reflect an expansive shift. Knowing how to prepare for such a surprise visit is crucial for employers, he notes. These raids carry the risk for employers of heavy civil penalties and even potential prison time for knowingly employing undocumented workers.
If ICE does pay a visit to a worksite, remember that the agents must have a warrant to enter a business or arrest an employee. “You should not panic or refuse to speak to them, but you and your employees do have the right to remain silent and speak to a lawyer,” Anderson advises.
The first thing inspectors look at are the employees’ I-9 forms showing their immigration status. Employers have been required to fill out and maintain these forms since 1986. (The E-Verify system compares information from an employee’s I-9 form to data from U.S. government records.)
It is vitally important that you make sure your I-9s are in order and conduct periodic internal audits to assess the status of all I-9s in your possession, Anderson emphasizes. Also ensure that all of your worksites and their staff have proper training for I-9 implementation. Although it may not be mandatory for your company, he urges employers to enroll in and utilize E-Verify if at all possible.
Paying close attention to the handling of I-9 forms is essential. The U.S. Citizenship and Immigration Services (the sister agency to ICE with the Department of Homeland Security which handles forms processing) reports that 76% of paper I-9s contain an error that could result in a fine. And those fines recently became more costly. Late last year, before Trump took office, the range of fines that can be imposed for I-9 paperwork errors rose from a minimum of $110 to $216, and the maximum from $1,110 to $2,156 per individual.
Curtis Y. Chow, an attorney with the law firm of Ogletree Deakins, agrees with Anderson that proper handling of I-9 forms is key. “By ensuring proper I-9 completion, an employer not only reduces its risk of monetary penalties from paperwork violations but likewise reduces the risk of penalties arising from employment of an unauthorized worker.”
He also urges employers to be proactive in protecting their rights as well as those of their employees. “Law enforcement officers will not assert an employer’s rights on the employer’s behalf,” Chow warns. “Therefore, it is important that employers be aware of their rights and be prepared to assert them in the event of a site visit.”
When They Are at the Door
Once a company representative becomes aware that a worksite investigation or raid is taking place, they should swiftly notify in-house legal counsel or an appropriate, trained corporate officer to help preserve your company’s rights, Chow says. “Note that a government official with a warrant is not required to wait for counsel to begin executing the warrant, so time will be of the essence when trying to stay on top of the situation.”
If an ICE officer is conducting the site visit to obtain I-9 records but is not executing a search warrant, the employer has the right to three days’ notice prior to turning over the documents, he points out.
The employer has a right to review the warrant to verify its validity and scope (for example, was it signed by a court? Has the warrant expired? What are the locations to be searched and items sought?), Chow points out. An employer also has the right to deny ICE agents or any other accompanying law enforcement officers permission to access non-public areas of the employer’s property absent a valid warrant that covers them.
Another point to keep in mind in this era when immigration raids can be a hot news topic is that warrants apply only to law enforcement officials; an employer has the right to refuse media or news reporters access to the facility, Chow says.
In addition to making sure appropriate staff are trained in the proper handling of I-9 forms, Chow also counsels employers to designate a staff member as an immigration compliance officer who serves as a central point of contact for the law enforcement agencies conducting worksite enforcement.
Another good practice is to train other personnel who may be the ones who are the first to encounter an immigration enforcement officer at an employer site. Typically a receptionist, cashier or site manager, they should be instructed to request a copy of the officer’s credentials, such as a badge and business card, disclose no information, and to direct all inquiries and requests for site access to the immigration compliance officer.
“The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement,” Chow concludes. “With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new ICE agents, employers can expect an increased number of audits, raids and investigations.”